Procedure : 2013/2189(IMM)
Document stages in plenary
Document selected : A7-0045/2014

Texts tabled :

A7-0045/2014

Debates :

Votes :

PV 04/02/2014 - 6.7
CRE 04/02/2014 - 6.7

Texts adopted :

P7_TA(2014)0053

REPORT     
PDF 175kWORD 74k
24 January 2014
PE 524.729v02-00 A7-0045/2014

on the request for waiver of the immunity of Zbigniew Ziobro

(2013/2189(IMM))

Committee on Legal Affairs

Rapporteur: Cecilia Wikström

PROPOSAL FOR A EUROPEAN PARLIAMENT DECISION
 EXPLANATORY STATEMENT
 RESULT OF FINAL VOTE IN COMMITTEE

PROPOSAL FOR A EUROPEAN PARLIAMENT DECISION

on the request for waiver of the immunity of Zbigniew Ziobro

(2013/2189(IMM))

The European Parliament,

–   having regard to the request for waiver of the immunity of Zbigniew Ziobro, put forward by the Public Prosecutor of the Republic of Poland on 24 June 2013, in connection with criminal proceedings pending before the District Court for Warsaw City Centre, Department V (Criminal) [Reference No V K199/12], and announced in plenary on 9 September 2013,

–   having regard to the hearing of Zbigniew Ziobro, in accordance with Rule 7(5) of its Rules of Procedure,

–   having regard to Articles 8 and 9 of Protocol No 7 on the Privileges and Immunities of the European Union, and Article 6(2) of the Act of 20 September 1976 concerning the election of the members of the European Parliament by direct universal suffrage,

–   having regard to the judgments of the Court of Justice of the European Union of 12 May 1964, 10 July 1986, 15 and 21 October 2008, 19 March 2010 and 6 September 2011(1),

–   having regard to Article 105 of the Constitution of the Republic of Poland,

–   having regard to Rules 6(1) and 7 of its Rules of Procedure,

–   having regard to the report of the Committee on Legal Affairs (A7-0045/2014),

A. whereas the Public Prosecutor of the Republic of Poland has requested the waiver of the parliamentary immunity of Zbigniew Ziobro, Member of the European Parliament, in connection with legal action concerning an alleged criminal offence;

B.  whereas the request by the Public Prosecutor relates to an offence subject to private prosecution under Article 212(1) and (2) of the Polish Criminal Code;

C. whereas, according to Article 8 of the Protocol on the Privileges and Immunities of the European Union, Members of the European Parliament shall not be subject to any form of inquiry, detention or legal proceedings in respect of opinions expressed or votes cast by them in the performance of their duties;

D. whereas, according to Article 9 of the Protocol on the Privileges and Immunities of the European Union, Members of the European Parliament shall enjoy, in the territory of their own State, the immunities accorded to members of their Parliament;

E.  whereas, under Article 105 of the Constitution of the Republic of Poland, ‘a Deputy shall not be held accountable for his activity performed within the scope of a Deputy’s mandate during the term thereof nor after its completion. Regarding such activities, a Deputy can only be held accountable before the Sejm and, in a case where he has infringed the rights of third parties, he may only be proceeded against before a court with the consent of the Sejm’;

F.  whereas whether immunity is or is not to be waived in a given case is for Parliament alone to decide; whereas Parliament may reasonably take account of the Member’s position in reaching its decision on whether or not to waive his/her immunity(2);

G. whereas the alleged offence does not have a direct or obvious connection with Zbigniew Ziobro’s performance of his duties as a Member of the European Parliament, nor does it constitute an opinion expressed or a vote cast in the performance of his duties as a Member of the European Parliament for the purposes of Article 8 of Protocol No 7 on the Privileges and Immunities of the European Union;

H. whereas the criminal proceedings brought against Zbigniew Ziobro bear no connection to his position as a Member of the European Parliament;

I.   whereas in the present case Parliament has found no evidence of fumus persecutionis, that is, a sufficiently serious and precise suspicion that the case has been brought with the intention of causing political damage to the Member concerned;

J.   whereas the request is brought as a result of a counterclaim and whereas, in such a context, a decision not to waive a Member’s immunity would prevent the other private party from pursuing his case before the court as part of his defence;

1.  Decides to waive the immunity of Zbigniew Ziobro;

2.  Instructs its President to forward this decision and the report of its competent committee immediately to the competent authority of the Republic of Poland and to Zbigniew Ziobro.

(1)

Case 101/63 Wagner v Fohrmann and Krier [1964] ECR 195, Case 149/85 Wybot v Faure and Others [1986] ECR 2391, Case T-345/05 Mote v Parliament [2008] ECR II-2849, Joined Cases C-200/07 and C-201/07 Marra v De Gregorio and Clemente [2008] ECR I-7929, Case T-42/06 Gollnisch v Parliament [2010] ECR II-01135 and Case C-163/10 Patriciello [2011] ECR I-07565.

(2)

Case T-345/05 Mote v Parliament [2008] ECR II-2849, paragraph 28.


EXPLANATORY STATEMENT

1. Background

On 24 November 2011, in response to an interview of Mr Artur Balazs, former Polish Minister for Agriculture, with www.wpolityce.pl, Mr Zbigniew Ziobro, former Polish Minister of Justice in the Kaczyński government, made the following statement in an article entitled “Ziobro to sue Balazs” which was printed on page 5 of the ‘Gazeta Polska Codzienne’ newspaper and appeared on the same day on the www.niezalezna.pl website: “It is abundantly clear that Balazs mixed up his roles and thought that he could direct the members of the prosecution service to do what he wanted. He attempted to interfere in an investigation concerning the fuel mafia. He would like me to recall the prosecutor who was investigating the murky links that he or his associates had with the fuel mafia”.

On 10 April 2012, after Mr Ziobro brought the case of Mr Balazs’s interview before a court, Mr Balazs submitted a private counterclaim to the District Court for Warsaw City Centre, V Criminal Department, on the ground that, by the above statement, Mr Ziobro acted in a manner likely to discredit him in the eyes of public opinion or result in loss of confidence in his ability to carry out political activities or to hold public office, including at national level.

The court proposed to refer the case to mediation, which was accepted by Mr Balazs but refused by Mr Ziobro.

At the sitting of 9 September 2013, the President announced under Rule 7(1) of the Rules of Procedures that he had received a request dated 24 June 2013 from the office of the Public Prosecutor of the Polish Republic concerning the waiver of the parliamentary immunity of Zbigniew Ziobro with reference to Articles 8 and 9 of the Protocol on the Privileges and Immunities of the European Union.

The President referred this request to the Committee on Legal Affairs under Rule 7(1). Mr Ziobro was heard by the Committee on 21 January 2014 in accordance with Rule 7(5)(1).

2. Law and procedure on the immunity of Members of the European Parliament

Articles 8 and 9 of the Protocol (No 7) on the Privileges and Immunities of the European Union read as follows:

Article 8

Members of the European Parliament shall not be subject to any form of inquiry, detention or legal proceedings in respect of opinions expressed or votes cast by them in the performance of their duties.

Article 9

During the sessions of the European Parliament, its Members shall enjoy:

a. in the territory of their own State, the immunities accorded to members of their parliament;

b. in the territory of other Member States, immunity from any measures or detention and from legal proceedings.

Immunity shall likewise apply to Members while they are travelling to and from the place of meeting of the European Parliament.

Immunity cannot be claimed when a Member is found in the act of committing an offence and shall not prevent the European Parliament from exercising its right to waive the immunity of one of its Members.

Rules 6 and 7 of the Rules of Procedure of the European Parliament read as follows:

Rule 6 - Waiver of immunity:

1. In the exercise of its power in respect of privileges and immunities, Parliament shall seek primarily to uphold its integrity as a democratic legislative assembly and to secure the independence of its Members in performance of their duties. Any request for waiver of immunity shall be evaluated in accordance with Articles 7, 8 and 9 of the Protocol on the Privileges and Immunities of the European Union and with the principles referred to in this Rule. (...)

Rule 7 - Procedures on immunity

1. Any request addressed to the President by a competent authority of a Member State that the immunity of a Member be waived, or by a Member or a former Member that privileges and immunities be defended, shall be announced in Parliament and referred to the committee responsible.

2. The committee shall consider without delay, but having regard to their relative complexity, requests for the waiver of immunity or requests for the defence of privileges and immunities.

3. The committee shall make a proposal for a reasoned decision which recommends the adoption or rejection of the request for the waiver of immunity or for the defence of immunity and privileges.

4. The committee may ask the authority concerned to provide any information or explanation which the committee deems necessary in order for it to form an opinion on whether immunity should be waived or defended.

5. The Member concerned shall be given an opportunity to be heard, may present any documents or other written evidence deemed by that Member to be relevant and may be represented by another Member.

The Member shall not be present during debates on the request for waiver or defence of his or her immunity, except for the hearing itself.

The chair of the committee shall invite the Member to be heard, indicating a date and time. The Member may renounce the right to be heard.

If the Member fails to attend the hearing pursuant to that invitation, he or she shall be deemed to have renounced the right to be heard, unless he or she has asked to be excused from being heard on the date and at the time proposed, giving reasons. The chair of the committee shall rule on whether such a request to be excused is to be accepted in view of the reasons given, and no appeals shall be permitted on this point.

If the chair of the committee grants the request to be excused, he or she shall invite the Member to be heard at a new date and time. If the Member fails to comply with the second invitation to be heard, the procedure shall continue without the Member having been heard. No further requests to be excused, or to be heard, may then be accepted. (...)

7. The committee may offer a reasoned opinion as to the competence of the authority in question and the admissibility of the request, but shall not, under any circumstances, pronounce on the guilt or otherwise of the Member nor on whether or not the opinions or acts attributed to him or her justify prosecution, even if, in considering the request, it acquires detailed knowledge of the facts of the case. (...)

Article 105(1) of the Constitution of the Republic of Poland reads as follows:

A Deputy shall not be held accountable for his activity performed within the scope of a Deputys mandate during the term thereof nor after its completion. Regarding such activities, a Deputy can only be held accountable before the Sejm and, in a case where he has infringed the rights of third parties, he may only be proceeded against before a court with the consent of the Sejm. (...)

Article 212(1) and (2) of the Polish Criminal Code read as follows

1. Whoever imputes to another person, a group of persons, an institution or organisational unit not having the status of a legal person, such conduct, or characteristics that may discredit them in the face of public opinion or result in a loss of confidence necessary for a given position, occupation or type to activity shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty.

2. If the perpetrator commits the act specified in § 1 through the mass media shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to 1 year. (...)

3. Justification for the proposed decision

The present case qualifies for the application of Article 9 of the Protocol No 7 on the Privileges and Immunities of the European Union. It is true that allegedly slanderous statements may, in principle, be covered by the absolute immunity provided for in Article 8 of the Protocol (which refers to opinions expressed by a Member while carrying out his duties). However, clear boundaries to this provision have been set by the Court of Justice, which has held that “a statement made by a Member of the European Parliament beyond the precincts of that institution and giving rise to prosecution in his Member State of origin for the offence of making false accusations does not constitute an opinion expressed in the performance of his parliamentary duties covered by the immunity afforded by that provision unless that statement amounts to a subjective appraisal having a direct, obvious connection with the performance of those duties(2). The Court has also recently recalled its case-law in the Gollnisch case(3) according to which the opinion (in the broadest sense) of an MEP is covered by immunity – established on the basis of EU law – only where it was expressed ‘in the performance of [his duties]’, thus implying the requirement of a link between the opinion expressed and the performance of the parliamentary duties. That link must be direct and obvious.

On the basis of the facts of the present case, there are no grounds for establishing the required direct and obvious link. The case does not fall within the scope of Mr Ziobro’s political activities as Member of the European Parliament as it concerns instead activities of a purely national nature. Indeed, Mr Ziobro’s statements were made in response to an interview of the former Polish Minister of Agriculture and referred to facts which had occurred in 2006, when Mr Ziobro was Minister of Justice in the government led by Jarosław Kaczyński. These facts thus precede and are distinct from his activity of Member of the European Parliament. The alleged action does not therefore have a direct and obvious connection with Mr Ziobro’s performance of his duties as a Member of the European Parliament nor does it constitute an opinion expressed in the performance of his duties for the purposes of Article 8 of Protocol No 7 on the Privileges and Immunities of the European Union. Furthermore, the criminal proceedings brought against Mr Ziobro have no connection with his current office of Member of the European Parliament.

Pursuant to Article 9 of the Protocol, Members shall enjoy, in the territory of their own State, the immunities accorded to members of the Parliament of that State. Article 105(1) of the Polish Constitution stipulates that, with regards to the activity performed within the scope of his mandate, a Member of the Polish Sejm can only be held accountable before the latter and, in a case where he has infringed the rights of third parties, he may only be proceeded against before a court with the consent of the Polish Sejm. A decision of the European Parliament is therefore required if the prosecution of Mr Ziobro is to go ahead.

In order to decide whether or not to waive a Member’s parliamentary immunity, Parliament applies its own consistent principles. Although the present private prosecution case appears to be brought in the context of a political confrontation, the Committee has found no evidence of fumus persecutionis, i.e. a sufficiently serious and precise suspicion that the matter has been brought before a court with the intention of causing political damage to the Member concerned.

It is worth recalling that the request is brought as a result of a counterclaim and, in such a context, the decision not to waive a Member’s immunity would prevent the other private party from pursuing his case before the court as part of his defence.

Last but not least, when making the request for waiver, the Public Prosecutor did nothing but approve the initiation of the private prosecution and made it clear that he had neither, for reasons of general interest, taken up the matter, launched proceedings nor opted into the proceedings.

4. Conclusion

On the basis of the above considerations and pursuant to Rule 7(3) of the Rules of Procedure, the Committee on Legal Affairs recommends that the European Parliament should waive the parliamentary immunity of Mr Zbigniew Ziobro.

(1)

It may be worth recalling that an earlier request for waiver of the immunity of Mr Ziobro was submitted to Parliament in January 2013. However, that request was made by the Judge of the District Court for Warsaw City Centre, Department V (Criminal), upon request of a private party and not, as indicated by the Polish authorities on a previous occasion by letter of 26 July 2011, by the Public Prosecutor’s office. The Committee on Legal Affairs took the view that the request for waiver of the immunity was, therefore, not addressed to the European Parliament by the competent authority and deemed it inadmissible.

(2)

Patriciello, cited above, in the operative part and at paragraph 41. Emphasis added.

(3)

Joined Cases T-346/11 and T-347/11 Bruno Gollnisch v Parliament, cited above.


RESULT OF FINAL VOTE IN COMMITTEE

Date adopted

21.1.2014

 

 

 

Result of final vote

+:

–:

0:

10

0

0

Members present for the final vote

Lidia Joanna Geringer de Oedenberg, Sajjad Karim, Klaus-Heiner Lehne, Antonio Masip Hidalgo, Bernhard Rapkay, Evelyn Regner, Francesco Enrico Speroni, Dimitar Stoyanov, Cecilia Wikström, Tadeusz Zwiefka

Last updated: 27 January 2014Legal notice